Zelda Perkins, former assistant to Hollywood producer Harvey Weinstein, has broken a nondisclosure agreement(NDA) regarding her monetary settlement for sexual harassment during her employment at Miramax. Her speaking out has helped fuel a dialogue on whether confidentiality agreements should be permitted in these types of cases at all.

Perkins said Weinstein asked for a massage while in his underwear, wanted her in the room while he bathed and often tried to pull her into bed when she woke him up. She also alleged that Weinstein sexually assaulted a colleague and that both women settled claims because they felt they had no other options. The New York Times uncovered similar settlements between Weinstein and at least eight women, and this isn’t the first time NDAs in sexual assault and harassment cases have been in the news lately. Fox News founder Roger Ailes and former host Bill O’Reilly have personally or through their company, 21st Century Fox, paid tens of millions of dollars for the silence of several women who claim to have been sexually harassed by them.

Details vary, but generally, NDAs are common features of settlements in these kinds of claims through which the aggrieved party agrees not to pursue litigation or discuss terms of the deal in exchange for a sum of money. If the NDA is violated, the other party may sue for injunctive relief, which would stop the release of information, and recover damages.

Why did Perkins speak out despite the NDA? In her own words, “Unless somebody does this there won’t be a debate about how egregious these agreements are and the amount of duress that victims are put under. My entire world fell in because I thought the law was there to protect those who abided by it. I discovered that it had nothing to do with right and wrong and everything to do with money and power."

The Debate Ensues

As Perkins had hoped, a debate has indeed been ignited. Many people—both inside and outside legal circles—are asking the question: Should NDAs even be allowed in situations that involve sexual assault and harassment?

“Secret settlements in sexual assault and related cases can jeopardize the public—including other potential victims—and allow perpetrators to escape justice just because they have the money to pay the cost of the settlements,” Leyva said. “These secret settlements in workplace and other settings can ultimately endanger the public by hiding sexual predators from law enforcement and the public.”

Leyva's proclamation comes on the heels of a letter by women political leaders in California that calls the problem of sexual harassment "pervasive." The letter has nearly five pages of signatures—more than 140 women—who have “endured, or witnessed or worked with women who have experienced some form of dehumanizing behavior by men in our workplaces.”

It's important to note, however, that confidentiality agreements could sometimes benefit those who have suffered sexual assault and harassment as well, protecting them from unwanted negative attention or even retaliation. Moreover, it's possible that payout amounts could drop if silence is no longer one of the benefits of settling a claim. These concerns may urge a more nuanced approach to the use of NDAs in these types of claims rather than a complete ban.

What’s Next in the Weinstein Affair?

Weinstein, who has been fired by The Weinstein Company, could sue Perkins for breaking the NDA, though it’s unlikely he would do so in the current climate. Not only would it be difficult to find a sympathetic judge, but it would also run counter to his public pledge, "I cannot be more remorseful about the people I hurt and I plan to do right by all of them."

The settlement NDAs aren't the only confidentiality agreements that Weinstein has to worry about, either. As a condition of employment, Weinstein Co. employees are required to sign NDAs, and recently some staff members, who insist they didn't know they were "working for a serious sexual predator," published a letter asking to be let out of their NDAs so they can speak openly about their work atmosphere.

While Leyva's potential bill is something to keep an eye on in California, contractual confidentiality provisions are governed by state law, which means each state would have to address the issue individually.

If state legislatures can't or don't want new laws on the subject, another avenue could be through court challenges to the enforcement of NDAs in these cases. Some states have "sunshine in litigation" laws that prohibit courts from enforcing confidentiality provisions in settlement agreements regarding "public hazards," and most states have more generalized laws that prohibit any agreement that conceals a public hazard.

Florida attorney Chloe J. Roberts believes NDAs in sexual harassment cases could be challenged under these laws. "In the employment context," she wrote at Law360, "sexual harassers are arguably individuals and workplace conditions that cause injury to the unknowing public and create a public hazard."

Whether this whole situation ends with new legislation or legal precedent or not, the Weinstein matter—and the courageous actions of Perkins and several other women who have come forward to share their experiences—has shone a Hollywood-sized spotlight on NDAs in sexual assault and harassment cases that will be difficult, if not impossible, to dim.